CASE OF PETROV AND OTHERS v. BULGARIA
(Applications nos. 49817/14 and 2 others – see appended list)
13 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Petrov and Others v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the applications (nos. 49817/14, 51592/14 and 47845/15) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Bulgarian nationals, Mr Rumen Velikov Petrov (“the first applicant”), Mr Kiril Velikov Petrov (“the second applicant”) and Mr Atanas Tenev Atanasov (“the third applicant”), on the various dates indicated in the appended table;
the decision to give notice to the Bulgarian Government (“the Government”) of the complaints relating to insufficient compensation for the excessive duration of criminal proceedings against them and to declare inadmissible the remainder of the applicants’ complaints;
the parties’ observations;
Having deliberated in private on 22 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The applications concern allegedly insufficient compensation awarded by the domestic courts for excessive length of criminal proceedings against the applicants.
2. The applicants were born in 1973, 1977 and 1970 respectively. The first and second applicants live in Varna. The third applicant lives in Burgas. The first and second applicants were represented by Ms R.P. Mineva, a lawyer practising in Varna. The third applicant was represented by Mr S.K. Karov, a lawyer practising in Burgas.
3. The Government were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Criminal proceedings were instituted against all three applicants on different dates.
6. In respect of the first and the second applicants, the proceedings lasted from 2001 until 2011 and ended with their acquittal following two levels of jurisdiction. The indictments against the first two applicants were submitted to court in 2008, the proceedings having remained at the pre-trial investigative stage until that time.
7. As regards the third applicant, the proceedings against him lasted from 1995 until 2008 and ended with his conviction following three levels of jurisdiction. The indictment against him was submitted to court in 2005, the proceedings having remained at the pre-trial investigative stage until that time.
8. All three levels of courts which dealt with the third applicant’s case at the trial stage noted explicitly the excessive length of the criminal proceedings against him and accounted for that in the sanction they imposed on him.
9. In particular, the Yambol Regional Court, sitting at first instance, held that the excessive procedural length had been a mitigating circumstance which justified fixing the punishment below the applicable statutory minimum which was three years’ imprisonment in his case. It accordingly sentenced the third applicant to two years’ imprisonment and suspended that prison term for a period of four years. Upon the applicant’s appeal, the Burgas Court of Appeal upheld the first-instance court’s judgment. Thereafter, the Supreme Court of Cassation (SCC) further lowered the sentence imposed on the third applicant to one year’s imprisonment, suspended for a three-year period. The SCC explicitly linked this decision to the fact that the criminal proceedings had been unreasonably long, in breach of Article 6 § 1 of the Convention, and the applicant had not contributed to the delay.
10. All three applicants brought civil proceedings, seeking compensation for the excessive length of the criminal proceedings against them.
11. In respect of the first applicant, in a final judgment of 8 January 2014 the courts awarded him 1,000 euros (EUR) in damages for the excessive duration of the proceedings against him. The courts applied Article 6 § 1 of the Convention directly as relied upon by the first applicant. They found in particular that, although the applicant had not been kept in detention in connection with these proceedings, the mere fact that they had lasted so long had inevitably caused him fear and anxiety, which justified the amount awarded.
12. In the same proceedings, the first applicant also sought damages in connection with his unlawful prosecution, a claim he brought under section 2 (1)(2) of the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”). The courts awarded him EUR 650 in connection with that complaint, finding that the State bore strict liability in cases where indicted individuals had ultimately been acquitted. In estimating the amount of damages due to him, the courts took into account the excessive length of the proceedings against the applicant, the limitations on his social contacts during that period and the family and other problems he had experienced in that connection.
13. In respect of the second applicant, in a final judgment of 14 January 2014 the courts awarded him EUR 500 for the excessive length of the proceedings against him (under Article 6 § 1 of the Convention as relied upon by him) and EUR 500 in respect of his unlawful prosecution (under section 2 (1)(2) of the SMRDA). In determining the amount of damages due to him as a result of his unlawful prosecution, the civil courts took into account the excessive length of the criminal proceedings against him, the limitations on his social contacts during that period and the family and other problems he had experienced in that connection.
14. In respect of the third applicant, the proceedings ended with a final judgment dated 26 March 2015. Having established that the criminal proceedings against him had been excessively lengthy, the civil courts awarded him EUR 1,350 in that connection. In doing so, the courts relied on Article 6 § 1 of the Convention in conjunction with section 49 of the Contracts and Obligations Act which provided for vicarious tort liability.
RELEVANT LEGAL FRAMEWORK
15. Under Article 239a of the Code of Criminal Procedure of 1974, in force as of June 2003, individuals accused of committing a crime were entitled to have their case examined by a court or terminated, if the investigation had not been completed within one year, or within two years in serious cases. This provision was reproduced almost verbatim in Articles 368 and 369 of the Code of Criminal Procedure 2005 before it was repealed by Parliament with effect from 28 May 2010.
I. JOINDER OF THE APPLICATIONS
16. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17. The applicants complained that the amounts awarded to them as compensation for the excessive length of the criminal proceedings against them had been too low and, as such, did not provide adequate redress for the breach of their right to proceedings within a reasonable time, as provided for under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
1. As regards the first two applicants
18. The Government advanced that the applications were inadmissible for failure to exhaust domestic remedies. In particular, between 2003 and 2008 the first two applicants could have used the acceleratory remedy provided for in the Code of Criminal Procedure (see paragraph 15 above) in order to speed up the proceedings. The Government further stated that the compensation awarded to these applicants domestically had been adequate, therefore their related complaints were manifestly ill-founded and they could not claim victim status.
19. The first and second applicants disagreed. They pointed out in particular the failure of the domestic courts to award them just compensation for the excessive length of the proceedings against them and claimed that, as a result, they continued to be victims under Article 6 § 1 of the Convention.
20. The Court observes in respect of the first two applicants that the domestic civil courts had established unequivocally that the criminal proceedings against them had been excessively long, in breach of Article 6 § 1 of the Convention. The Court sees no reason to find otherwise. Further, the domestic courts awarded the applicants compensation in that respect. The issue raised by these applicants before the Court concerned the allegedly insufficient amount of compensation. The Court finds, therefore, that the acceleratory remedy referred to by the Government is not an adequate and effective remedy for these applicants’ complaints. In particular, the procedure under that remedy was aimed at speeding up the criminal proceedings while they were pending and thus at preventing them from becoming excessively long. The complaint before the Court concerns compensation given domestically for the already established excessive length of prior criminal proceedings.
21. In view of the above, the question before the Court is whether the first two applicants can continue to claim to be victims of a violation of the right to a trial within a reasonable time, as provided for under Article 6 § 1 of the Convention.
22. The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails, on the part of the Court, an ex post facto examination of his or her situation (see Cocchiarella v. Italy [GC], no. 64886/01, § 72, ECHR 2006‑V). The Court is required to verify that there has been an acknowledgment, at least in substance, by the authorities of a violation of a right protected by the Convention and whether the redress can be considered as appropriate and sufficient (ibid., § 84, with further references).
23. In that connection, given that a violation of Article 6 § 1 of the Convention had been recognised domestically, it remains for the Court to verify whether the redress afforded can be considered as appropriate and sufficient (see, mutatis mutandis, Cocchiarella, cited above, § 85).
24. Regarding violations of the reasonable-time requirement, one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded as a result of using a domestic remedy (see Cocchiarella, cited above, § 93). Therefore, the question of whether an applicant has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue (ibid, § 72).
25. The Court notes that the first applicant was awarded EUR 1,000 and the second applicant EUR 500 in respect of the length of the proceedings which had lasted for ten years before the applicants were ultimately acquitted. These amounts are significantly lower than what the Court would have awarded even after taking into account the explicit recognition at domestic level of the excessive length of the proceedings (see, for a similar approach, Cocchiarella, cited above, § 106).
26. Admittedly, as the Government pointed out, the domestic civil courts also took into account the excessive procedural length when determining the amount of damages they awarded to the applicants for their unlawful prosecution (see paragraphs 12 and 13 above). However, the length of the proceedings was only one of the elements considered relevant by the domestic courts. Thus, while the fact that the length had been excessive was partly reflected in the sums awarded under that head, namely EUR 650 to the first applicant and EUR 500 to the second applicant, it was not determinative for those amounts.
27. In view of the above, the Court finds that the amounts awarded domestically to the first and second applicants in respect of the excessive length of the criminal proceeding recognised by the courts, are manifestly unreasonable in the light of the criteria established in its case-law. As the second condition of appropriate and sufficient redress (see paragraph 22 above) has not been fulfilled, the Court considers that the first and second applicants could still claim to be victims of a breach of the “reasonable time” requirement under Article 6 § 1 of the Convention.
28. The Court further finds that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
2. As regards the third applicant
29. The Government submitted that the third applicant could also have used the acceleratory remedy mentioned above over the period of two years, namely between June 2003 and June 2005.
30. Furthermore, the Government claimed that his application was inadmissible as being either manifestly ill-founded or incompatible ratione personae with the Convention. More specifically, they pointed out that, when deciding on the applicant’s criminal liability, the criminal courts had explicitly considered the excessive length of the proceedings against him as a mitigating circumstance and had reduced his sentence significantly and quantifiably as a result. Thereafter, the civil courts had compensated him adequately for the excessive length of proceedings. Both of those elements had been sufficient to deprive him of his victim status.
31. The third applicant contested the Government’s claim that the acceleratory remedy would have been adequate in his case. He emphasised in that connection that, by the time it had become available to him in 2003, the proceedings against him had already been pending for eight years. In addition, although the punishment imposed on him had been lowered as a result of the length of the proceedings against him, the criminal courts had nonetheless upheld the civil claim which the prosecution had brought against him in the criminal proceedings. As a result, in the criminal proceedings he had been ordered to pay the same amount of money which the administrative courts had earlier established that he owed the State in unpaid taxes.
32. The Court reiterates that it is its settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001‑I). In cases of criminal proceedings against applicants, the mitigation of a sentence on account of the excessive length of proceedings may deprive the individual concerned of his or her status as a victim when the national authorities acknowledge in a sufficiently clear way the failure to observe the reasonable‑time requirement of Article 6 § 1 and afford redress by reducing the sentence in an express and measurable manner (see Jansen v. Germany (dec.), no. 44186/98, 12 October 2000, and Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 64 with further references, 10 May 2011).
33. In the instant case, while the third applicant complains in particular that the amount awarded in damages for the excessive length of proceedings was too low, the Court finds that it cannot consider that amount in isolation. The reason is that it was the last element in a sequence of measures the domestic courts took in response to the excessive length of the proceedings against him. In particular, the criminal courts which dealt with the applicant’s case acknowledged unequivocally the excessive length of the criminal proceedings against him and explicitly took that into account when determining his sentence. As a result, at first instance the applicant was given a sentence below the statutory minimum, which was also suspended. The SCC further lowered both that sentence and the period for which it had to be suspended, respectively, to one year’s imprisonment suspended for three years. In doing so the SCC specifically referred to the excessive length of the proceedings against the applicant. Subsequently, the civil courts awarded the applicant EUR 1,350 as compensation for the unreasonable duration of the proceedings.
34. In the circumstances, the Court finds that the reduction of the third applicant’s sentence on account of the length of the proceedings against him was both a sufficiently clear acknowledgement of the authorities’ failure to observe the reasonable time requirement under Article 6 § 1 of the Convention and a quantifiable redress for that failure (see, similarly, Hadjiiski and Iliev v. Bulgaria (dec.), nos. 68454/01 and 68456/01, 2 June 2006). The combination of that specific and measurable levelling off of the applicant’s sentence by the criminal courts and the further award by the civil courts of compensation in that connection leads the Court to find that the redress afforded domestically to the third applicant was adequate and sufficient. Consequently, he can no longer claim to be a victim of a violation of Article 6 § 1 of the Convention in conjunction with Article 34.
35. It follows that the third applicant’s complaint regarding the excessive length of the proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
36. The first and second applicants reiterated their complaint.
37. The Government submitted that, examined on the merits, the complaints did not reveal any violation of the Convention. They pointed out that the applicants had been awarded compensation domestically for the unreasonable length of the proceedings against them. Also, while the proceedings had been pending against the first applicant, there had been nine other separate sets of criminal proceedings pending against him for different offences. Consequently, the length of the proceedings at stake in the present case could not have caused the first applicant major anxiety and suffering.
38. The Court considers, in view of its findings above regarding the amount of damages awarded domestically to the first and second applicants for the excessive length of the criminal proceedings against them, and having regard to its case-law on the subject, that in the present case the length of the proceedings failed to meet the “reasonable time” requirement and was not adequately compensated.
39. Accordingly, there has been a violation of Article 6 § 1 of the Convention in respect of those two applicants.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
41. The first and second applicants claimed EUR 15,000 each in respect of non-pecuniary damage.
42. The Government submitted that this amount was exorbitant.
43. The Court has already held that the amount it would award in respect of non-pecuniary damage may be less than that indicated in its case-law where the applicant has already obtained a finding of a violation at domestic level and compensation by using a domestic remedy (see Cocchiarella, cited above, § 139). In such cases, applicants are normally awarded the difference between the amount obtained at domestic level and an amount that would not have been regarded as manifestly unreasonable compared with the amount awarded by the Court, if it had been awarded by the domestic court and paid speedily (ibid., § 140). Accordingly, in view of the clear recognition at the national level of a violation of the reasonable length requirement, as well as of the sums already awarded domestically in the present case, the Court finds it reasonable to award respectively EUR 1,500 to the first applicant and EUR 2,000 to the second applicant as regards non‑pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
44. The applicants also claimed EUR 3,000 each for legal fees incurred before the Court.
45. The Government submitted that the cases were not complicated and as such did not require profound research or other extensive work.
46. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award each of the first and second applicants EUR 500 for the proceedings before the Court, plus any tax that may be chargeable to the applicants, that sum to be paid directly to the bank account of their legal representative.
C. Default interest
47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the three applications;
2. Declares inadmissible the application lodged by the third applicant;
3. Declares admissible the applications of the first and second applicants;
4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the first and second applicants;
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 1,500 to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 500 to each of the first and second applicants, plus any tax that may be chargeable to them, in respect of costs and expenses, these amounts to be paid directly into the bank account of their representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the first and second applicants’ claims for just satisfaction.
Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Faris Vehabović
Deputy Registrar President
List of cases:
||Application no.||Case name||Lodged on||Applicant
Date of Birth
Place of Residence
|1||49817/14||Petrov v. Bulgaria||08/07/2014||Rumen Velikov PETROV
|Radostina Pencheva MINEVA|
|2||51592/14||Petrov v. Bulgaria||14/07/2014||Kiril Velikov PETROV
|Radostina Pencheva MINEVA|
|3||47845/15||Atanasov v. Bulgaria||23/09/2015||Atanas Tenev ATANASOV
|Sava Kolev KAROV|